3 Biddell v. Leeder, 1 Barn. & C. 327.

4 McMullen v. Riley, 6 Gray, 500. An agreement to convey land, coupled with a guaranty that a certain parcel of it should contain a certain number of acres, has been held indivisible. Dyer v. Graves, 37 Vt. 369.

§ 144. Where an agreement is originally, and remains until the time of bringing suit, indivisible and executory as to its various stipulations, the disability of a plaintiff to recover upon any one of those stipulations manifestly results, not from the fact that the statute happens to apply to the remainder, but from the tenor of the agreement, by which it has been shown to be the intention of the parties that, if performed at all, it is to be performed as a whole.3

§ 145. Where, on the other hand, the stipulations of the defendant are not so connected that they cannot reasonably be performed separately and independently, the question arises whether the plaintiff can recover upon one or more to which the statute does not apply, notwithstanding there are others to which it does apply. And, in the first place, it is clear upon all the authorities that he cannot, if his action be brought upon the entire contract. On this point it is necessary that the principal cases be examined a little in detail, in order to show clearly the reason of the rule.

§ 146. In the case of Lord Lexington v. Clarke, the declaration set forth that the plaintiff had demised premises at will to the first husband of the defendant's wife, and that there was due from him 160 rent, and that the defendant's wife, in consideration of being allowed to hold possession till a certain time and to remove certain fixtures, promised to pay the 160 and 260 more; that she did hold possession and took the fixtures, but had not paid the money. A special verdict found that she had paid the former sum but not the latter. By the opinion of all the court, judgment was given for the defendant on the claim for the unpaid 260, for, they said, "the promise as to one part being void, it cannot stand good for the other, for it is an entire agreement, and the action is brought for both the sums, and indeed could not be otherwise without variance from the promise." 1 In Thomas v. Williams, the defendant verbally promised the plaintiff, who was about to distrain upon his tenant for rent, that if he would not distrain, he would pay him the rent which would be due at Michaelmas ensuing, including, of course, the arrears as well as what should accrue in the mean time. The plaintiff sued upon this promise, and his verdict was for a sum made up partly of rent due at the time of the promise and partly of what accrued afterwards. On argument upon a rule to set aside the verdict, it was held by the Court of Queen's Bench that the contract, being in part within the Statute of Frauds, was wholly void.2 In both cases, it will be observed, the declaration was upon the entire special promise, and contained no general counts. Consequently the entire contract was to be proved as laid, and after the plaintiff had, by oral evidence, shown that part of it which was not within the Statute of Frauds, and upon which he wished to recover, there was a fatal variance between the contract he had counted upon and that which he had proved. In Chater v. Beckett, where the defendant engaged to pay the plaintiff the debt a third person owed him, and all the expenses he had incurred for the purpose of putting his debtor into bankruptcy, there was a special count setting forth the entire contract, and also general counts for money paid to defendant's use and money had and received. Neither of the latter counts was supported, however, for in paying his own expenses, the plaintiff had only paid his own debt; and so the case was correctly decided for the defendant, the authorities last quoted being precisely in point.1

1 Mayfield v. Wadsley, 3 Barn. & C. 357.

2 Wood v. Benson, 2 Cromp. & J. 94; Littlejohn, ex parte, 3 M. D. & De G. 182; Pierce v. Woodward, 6 Pick. (Mass.) 206; Mobile M. D. & M. Ins. Co. v. McMillan, 31 Ala. 711; Lowman v. Sheets, 124 lnd. 416.

3 Dowling v. McKenney, 124 Mass. 478.

1 Lord Lexington v. Clarke, 2 Vent. 223.

2 Thomas v. Williams, 10 Barn. & C. 664.

§ 147. It is quite obvious that the cases which have just been quoted proceeded, in fact, upon the ground that by the form of the plaintiff's action he had precluded himself from proving even so much of the contract as was not affected by the Statute of Frauds, because to do so would have involved a variance from the declaration, which alleged the entire and therefore a different contract.2 But they have been conceived to establish a principle that, if one stipulation in the engagement of a defendant was void by the statute, no recovery could be had upon the remainder. This opinion, which doubtless grew out of the generality of the language employed by judges in earlier cases, does not seem to have been distinctly affirmed and decided as law in any case but that of Loomis v. Newhall in Massachusetts. There the defendant had furnished supplies to the plaintiff's son, for which the son was liable, and the defendant at the request of the plaintiff continued to furnish supplies, the plaintiff saying, "for what you have done and for what you shall do for my son, I will see you paid." Besides the count on an account annexed, the declaration contained the common money counts. It was held upon the supposed authority of Chater v. Beckett and Lord Lexington v. Clarke, that the plaintiff could not recover for that part of the claim which arose after the promise, inasmuch as his recovery on that part which arose previously was barred by the statute as a promise to pay the debt of his son.1

1 Chater v. Beckett, 7 T. R. 201.

2 The following American cases stand on the same ground Noyes v. Humphreys, 11 Grat. (Va.) 636; Crawford v. Morrell, 8 Johns. (N. Y.) 253; Henderson v. Hudson, 1 Munf. (Va.) 510. And see Alexander v. Ghiselin, 5 Gill (Md.) 138; Duncan v. Blair, 5 Denio (N. Y) 196; Flournoy v. Van Campen, 71 Cal. 14.